P.S. ex rel. Nelson v. The Farm, Inc.

• Decision Date: 08 September 2009
• Docket Number: Case No. 07-2210-JWL.
• Parties: P.S. and C.S., by their Guardians, Linda NELSON and Randall Nelson, Plaintiffs, v. THE FARM, INC., Defendant.
• Court: U.S. District Court — District of Kansas

Page 1281

658 F.Supp.2d 1281

P.S. and C.S., by their Guardians, Linda NELSON and Randall Nelson, Plaintiffs, v. THE FARM, INC., Defendant.

Case No. 07-2210-JWL.

United States District Court, D. Kansas.

September 8, 2009.

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Michaela Shelton, Shelton Law Office P.A., Overland Park, KS, for Plaintiffs.

Amy S. Lemley, Brooke Bennett Aziere, Christine A. Louis, Foulston Siefkin LLP, Wichita, KS, Wendell F. Cowan, Jr., Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

In this diversity action, two minor children assert negligence claims under Kansas law against defendant The Farm, Inc. ("TFI"), a private foster care placement company, arising out of the alleged sexual and physical abuse of plaintiffs by the adopted teenage son of foster parents with whom TFI placed plaintiffs. The case presently comes before the Court on plaintiffs' and TFI's respective motions to exclude expert testimony (Doc. ## 273, 284); TFI's six separate summary judgment motions (Doc. # # 269, 271, 279, 282, 286, 288); and TFI's motions to strike certain factual statements submitted by plaintiffs in opposition to summary judgment (Doc. ## 350, 354). For the reasons set forth herein, the Court rules as follows: Plaintiffs' motion to exclude the expert testimony of Scott Fraser is granted; the remaining expert motions are denied. TFI's fourth motion for summary judgment, relating to plaintiffs' claims of wanton conduct and outrage and their claims for punitive damages, is granted, and judgment is entered in favor of TFI on those claims; TFI's remaining summary judgment motions are denied. TFI's motions to strike are denied.

I. Background¹

Plaintiff P.S., a male, was born in 1996; his sister, plaintiff C.S., was born in 1997. Plaintiffs presently reside in Texas with their legal guardians, Linda and Randall Nelson (plaintiffs' biological grandmother and her husband).

TFI is a not-for-profit corporation located in Kansas. In 1997, TFI began contracting with the Kansas Department of Social and Rehabilitation Services ("SRS") to provide foster care and reintegration services to Children in Need of Care in SRS custody. TFI's responsibilities included accepting foster children for placement; maintaining licensing files on foster parents; assigning duties to caseworkers, permanency social workers, permanency teams, and quality assurance teams; working collaboratively with other agencies in promoting the safety of foster children in SRS custody; and maintaining effective mechanisms for reviewing records and evaluating client care, contractual compliance, licensing standards, and national accreditation standards.

In February 2003, SRS removed plaintiffs from the care of their biological parents because of concerns about abuse and neglect. On February 25, 2003, TFI commenced foster care services for plaintiffs pursuant to its contract with SRS. On February 27, 2003, TFI placed plaintiffs in the home of Roy and Janet Bartram in Wyandotte County, Kansas. The Bartrams were licensed foster parents with whom TFI had previously placed foster children. Nathan Bartram, the then teenaged son of Roy and Janet Bartram, resided in the Bartram foster home during the time that plaintiffs resided there. The Bartrams had adopted Nathan in 1994.

During plaintiffs' placement in the Bartram home, a Kansas state district court ordered that plaintiffs undergo a sexual abuse evaluation. The evaluation was conducted by Dr. Lynn Sheets at the University of Kansas Medical Center on September 12, 2003. In her report, Dr. Sheets stated that neither plaintiff had disclosed any sexual abuse; that there were no strong suspicions of sexual abuse of C.S. at that time; and that P.S.'s behavior was suspicious for sexual abuse. Dr. Sheet's report also noted that, when asked whether she had ever been hurt in a private area, C.S. initially responded "Nathan," although she later denied having been touched in a private place. Dr. Sheets recommended that plaintiffs continue their ongoing mental health therapy treatments in order to facilitate the disclosure of any sexual abuse that plaintiffs may have suffered.

Plaintiffs remained in the Bartram foster home until March 5, 2004. In July 2004, Linda and Randall Nelson were appointed plaintiffs' guardians. After their removal, plaintiffs disclosed that they had been sexually abused by Nathan Bartram while they resided in the Bartram home. Nathan subsequently pleaded guilty to and admitted the sexual abuse of plaintiffs and the attempted murder of C.S. by the placement of a plastic bag over her head.

Plaintiffs P.S. and C.S., through their guardians, now assert claims of negligence and outrage against TFI under Kansas law, and they seek compensatory and punitive damages. Plaintiffs generally allege that TFI was negligent in placing them in and not removing them from the Bartram home and in managing their foster care and providing services to them, resulting in injuries suffered from the sexual abuse and attempted murder. Plaintiffs originally asserted claims also against Wyandot Center, where plaintiffs received mental health services, and the Bartrams, but those claims (as well as the claims between TFI and those parties) have been settled.

II. Plaintiffs' Motion to Exclude Expert Testimony (Doc. # 273)

Plaintiffs seek to exclude opinion testimony by TFI's experts Scott Fraser and Daniel Marble.

A. Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court instructed that district courts are to perform a "gatekeeping" role concerning the admission of expert scientific testimony. See id. at 589-93, 113 S.Ct. 2786; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702.

In order to determine that an expert's opinions are admissible, this Court must undertake a two-part analysis: first, the Court must determine that the witness is qualified by "knowledge, skill, experience, training, or education" to render the opinions; and second, the Court must determine "whether the witness' opinions are `reliable' under the principles set forth" in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.2001). The rejection of expert testimony is the exception rather than the rule. See Fed.R.Evid. 702 advisory committee notes.

To qualify as an expert, the expert must possess such "knowledge, skill, experience, training, or education" in the particular field as to make it appear that his or her opinion would rest on substantial foundation and would tend to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). In determining whether the proffered testimony is reliable, the Court assesses whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. See Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Daubert Court listed four factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance. Id. at 592-94, 113 S.Ct. 2786. In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a "definitive checklist or test" and that a court's inquiry into reliability must be "tied to the facts of a particular case." Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In some cases, "the relevant reliability concerns may focus upon personal knowledge or experience," rather than on the Daubert factors and scientific foundations. Id. (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir.2004)). The district court has "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Id. at 152, 119 S.Ct. 1167.

"The proponent of expert testimony bears the burden of showing that its proffered expert's testimony is admissible." United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009). The proponent thus bears the burden of presenting necessary evidence or requesting an evidentiary hearing in opposition to a challenge to expert testimony. See id. at 1244, 1251.

B. Testimony by Scott Fraser

TFI has designated Dr. Scott Fraser as an expert witness in this case. According to his expert report, Dr. Fraser evaluated information concerning the plaintiffs in light of "the best scientific knowledge about the diagnosis of child sexual abuse and the most reliable empirically-based predictors of true vs. false child sexual abuse allegations." He stated that "[e]xtensive scientific research has revealed common patterns of disclosure in cases of actual child sexual abuse," and that the "degree to which the facts [regarding plaintiffs] match or deviate from these scientifically based norms is of obvious importance in judging the reliability of the claims by the alleged victims." According to Dr. Fraser, "[t]he best, methodologically sound studies show that most...